Genocide, Responsibility and the ICJ

This week’s decision by the Hague-based International Court of Justice in the claims made by Croatia and Serbia on genocide during the 1990s has raised many questions. Both countries were found not to have committed genocide in Croatia. During the 1990s Balkans wars, which accompanied the break up of the Yugoslav state, thousands of people were killed and forced to flee their homes. But even the accusation of genocide has a special resonance for eveybody – and the case has been closely followed in the countries themselves. Justice Hub consulted expert Olivier Ribbelink, a senior researcher at the TMC Asser Institute in The Hague, who has written on the ICJ’s work and asked him to explain further what the decision meant.

Q What actually happened at the ICJ?

After so many years, in a case that had begun already in 1999, and where both parties did not want to retreat – basically because both parties had political and public opinion issues at stake – the ICJ gave a Judgment in which both states were told they have committed crimes and that they had breached their international obligations.

Q But they weren’t found to have committed genocide?

The ICJ only had jurisdiction to decide this case under the Genocide Convention to which both states are parties and because that’s what both parties invoked. The ICJ could only decide whether the requirements for genocide within the meaning of the Convention had been met and nothing else.

Both Croatia and Serbia, concluded the Court, have committed crimes that fall into the physical element of genocide: the killing of members of a group and causing serious bodily or mental harm to members of a group (actus reus). That has happened. Both states did that in the incidents they investigated.

Q That wasn’t enough though to prove genocide?

They also had to prove the mental element (mens rea). Genocide involves both the physical acts as well as the specific intention (dolus specialis) to destroy a group or a part of a group. And that, said the court, cannot be proven, and thus we cannot prove they have committed genocide.

Q Could the court have looked at other law?

Very importantly, they concluded that crimes have been committed that fall within the scope of the Genocide Convention as such. They may also fall under other international law instruments – international humanitarian law, that is, the law of armed conflict, and all that – but the judges said that is for other courts to decide on because we can only decide on the basis of the Genocide Convention.

Q It was predicted as unlikely that the ICJ would say that either state had breached the Convention. So was there anything surprising about this Judgment?

I found it surprising that they went into so much detail about the actual events – what happened here and what happened there. Many place names and municipalities have been mentioned by the Court. And they relied very much on the Yugoslavia Tribunal jurisprudence. That tribunal has dealt with so many of these issues.

Q Was it different from the Bosnia judgment handed down by the Court in 2007 in a similar case between Bosnia and Serbia?

There the Court simply said that the ICTY had established that genocide had taken place in Bosnia (Srebrenica), and they just went on from that. In this case, they discussed particular issues and instances while referring to ICTY cases. The Bosnia case was the first time the ICJ had referred to and accepted a decision by the Yugoslavia Tribunal. In this case they relied on several decisions by the ICTY.

Q This is the highest international law court in the world. Have they done anything with the Genocide Convention that was unexpected?

I still have to read judgment in its entirety, plus the many separate opinions. For example, the Brazilian judge has added a 142-page dissenting opinion. But it is interesting that they went into the Genocide Convention and its requirements so extensively. This is the first time they looked at Article II – that’s the article that lists the crimes – the killing and the mental harm. That’s quite new in the sense that they didn’t do that before. In this case they had to stop with the conclusion that both parties had committed acts that fall under Article II of the Genocide Convention, but they said they cannot prove that both states intended to destroy a population in whole or in part. The ICJ noted that the states appear to have aimed at the forced displacement of the majority of the populations.

Q Why do politicians want to invoke genocide?

First of all, Croatia followed Bosnia’s example. Bosnia filed its application, and probably Croatia thought they could do that also. They also went to the ICJ against Serbia under the Genocide Convention, which is the only one they could find apparently that is applicable to what happened in the former Yugoslavia, and to which they are both parties.

Q Is genocide a special crime?

The Genocide Convention is a very particular and special instrument. It was concluded in 1948 and represents a clear reaction against what happened in the Second World War, specifically of course the Holocaust. It was part of the intention to make sure that something like that never ever happened again. And indeed what was agreed on were rather strict rules. Genocide must include the intention to destroy a group as a whole or in part. Many people in many places may have designated specific events to be genocide, but most times they fail to prove the intention element.

Q Is the ICJ the right place for arguments about responsibility?

The Yugoslav tribunal is the place where individual criminal responsibility is judged. The ICJ is the place where disputes between states are judged, and where states can be held responsible. Genocide can involve state operatives, which thus involves the state as such. So the ICJ can be the place to examine state responsibility.

Q What about those still left without resolution – the victims?

The Court reminded both parties that there are a number of outstanding issues that they have to resolve that have to do with property and missing persons. And the ICJ called upon the parties to continue their cooperation to resolve these.

Justice Hub is an online platform aimed at a worldwide audience of 18-35 year olds, especially in countries where people are looking for sustainable and innovative solutions to problems of justice, peace and security. Justice can feel too abstract, too often owned by experts. We make the conversations lively and accessible.

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